Federal Immigration Detainers After Arizona v. United States
Federal Immigration Detainers Aft er Arizona v. United States
Loyola of Los Angeles Law Review Commons@Loyola 0 1
Christopher N. Lasch 0 1
Law Reviews 0 1
0 Christopher N. Lasch, Federal Immigration Detainers Aft er Arizona v. United States, 46 Loy. L.A. L. Rev. 629 (2013). Available at: https://digitalcommons.lmu.edu/llr/vol46/iss2/25 , USA
1 Thi s Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital
In Arizona v. United States, the Supreme Court held that three of
the four challenged provisions to Arizona’s “Support Our Law
Enforcement and Safe Neighborhoods Act” were preempted. The Court
reached this conclusion by focusing on the federal government’s
supremacy in immigration enforcement. Ironically, the Court’s focus on
federal supremacy undermines the executive branch’s central
enforcement measure for obtaining custody of suspected immigration
violators: immigration detainers.
The executive branch issues over a quarter million immigration
detainers each year to state and local law officials. These detainers
command state and local officials to hold a prisoner, who would
otherwise be released, in custody awaiting pickup by federal
immigration officials. This Article examines the immigration detainer
program under the analytical framework provided by the Court’s
Arizona decision. This Article proceeds by first describing the Arizona
decision and its underlying analytical framework. It then analyzes
immigration detainers within this framework, concluding that the
federal immigration detainer regulation is ultra vires and raises
substantial constitutional questions. Ultimately, this Article shows that
the Arizona decision will have significant impact on immigration
enforcement beyond the question of allocation of enforcement authority
between the federal government and state and local governments.
* Assistant Professor, University of Denver Sturm College of Law; J.D., Yale Law School;
A.B., Columbia College. My thanks go to the editors for inviting me to participate in this
Supreme Court review. I am also indebted to the following people who provided helpful
suggestions and insights along the way, though of course any problems that remain are my own:
Deborah Bergman, Patience Crowder, Annie Lai, Nantiya Ruan, Paromita Shah, Giovanna Shay,
Robin Walker Sterling, and Michael J. Wishnie. The Article also benefitted from a workshop held
at the University of Utah S.J. Quinney College of Law as part of the Rocky Mountain Junior
Scholars Forum, and I am grateful to the University of Denver for sending me to participate in the
Forum. Finally, I wish to thank John Galligan for his helpful research assistance and Christopher
Linas for his masterful editing.
Amendment Problems ...............................................698
IV. CONCLUSION .............................................................................700
“This is not the system Congress created.”1
I. INTRODUCTION
Immigration law always implicates civil rights,2 and the past
twenty years have seen an increasing importance for immigration as
a major civil rights battleground.3 A perceived immigration crisis4
intensified the heat of pro-immigrant and anti-immigrant sentiment
and brought immigration federalism issues from a simmer to a full
boil. Those seeking more vigorous immigration enforcement and
those seeking an expansion of immigrant rights alike attacked federal
immigration policy as a failed endeavor.5 Both groups sought change
at the state and local levels, but through radically different programs.
Anti-immigrant groups persuaded some state and local governments
to pass measures supplementing federal immigration enforcement
efforts6—purportedly grounded in the “inherent authority” of state
sovereign governments to regulate immigration. Meanwhile
immigrants’ rights advocates, decrying federal enforcement
measures tainted by racial profiling and constitutionally suspect
home and workplace raids, lobbied local governments to disentangle
state and local law enforcement from federal immigration
enforcement,7 resist cooperation, and create “sanctuary cities.”8
The Court’s June 25, 2012, decision in Arizona v. United States9
marked, in part,10 the end of the story of one such local effort:
Arizona’s “Support Our Law Enforcement and Safe Neighborhoods
Act,” colloquially known simply as “S.B. 1070,”11 enacted at the
behest of anti-immigration lobbyists frustrated by what they believed
to be the federal government’s failure to sufficiently enforce the
Nation’s immigration laws. Hailed as a landmark decision of historic
proportions,12 Arizona struck down three of the four challenged
sections of S.B. 1070.13 Two of the three provisions struck down
created state crimes to punish immigrants for not carrying federally
required registration (...truncated)